Arizona Supreme Court invalidates the Invest in Education Act initiative because the summary description on its signature petitions omits material provisions and creates a significant danger of confusion or unfairness to those who signed the petitions.

The Invest in Education Act initiative would have increased education funding and raised certain income tax rates for that purpose. The Act’s text would have established new tax brackets and new tax rates at higher income levels. After the Secretary of State concluded that proponents of the proposed initiative had submitted enough citizen signatures to qualify the initiative for the general election ballot, opponents of the initiative brought an expedited challenge to the measure that made its way to the Arizona Supreme Court. The Arizona Supreme Court issued a decision order invalidating the petition on August 29, 2018, followed by this per curiam opinion explaining the Court’s reasoning.

To place an initiative on the ballot, proponents of the initiative measure must obtain a sufficient number of petition signatures. Under A.R.S. § 19-102(A), the petitions must contain a summary “description of no more than one hundred words of the principal provisions of the proposed measure or constitutional amendment.” Although the description need not be impartial or detail every provision of an initiative, a petition is invalid if the description omits material provisions or creates a significant danger of confusion or unfairness.

The Court held that the description on the Act’s petitions is faulty in two respects. First, the Court held that the description omits that the Act would have ceased the statutory indexing of tax brackets based on inflation, meaning that tax bracket levels would no longer change year-to-year with the inflation rate. In addition, the Court held that the description omits that the Act would have reset tax brackets to their pre-indexed 2015 levels. As a result of the changes to indexing, most taxpayers would have seen a small tax increase (the portion that would have been within a lower tax bracket after indexing for inflation). The Court held that this omission created a significant risk of confusion or unfairness to petition signers because the description suggests that the new taxes would apply only to wealthier taxpayers when in fact there would be a marginal increase on most taxpayers. Second, the Court held that the petition’s description of the size of the tax increases on the higher income brackets “creates a significant danger of confusion” that the tax increases were much smaller than the Act actually would have imposed. The petition’s description states that the income tax rates would increase by “3.46% and 4.46%” but it would have been more accurate to state that the rates would increase by “3.46 and 4.46 percentage points.”

Chief Justice Bales, joined by Justice Timmer, dissented. The dissent disagreed with the Court’s determination that the 100-word description presented “a substantial danger of fraud, confusion or unfairness sufficient to invalidate the initiative petitions.” Writing separately, Justice Timmer further disputed “that the adequacy of the 100-word initiative description is properly assessed only after a court resolves any ambiguities in the initiative measure’s language.”

Vice Chief Justice Brutinel and Justices Pelander, Bolick, Gould, and Lopez joined the Court’s per curiam decision. Chief Justice Bales wrote a dissenting opinion; Justice Timmer joined the Chief Justice’s opinion and also authored a separate dissent.